The recent predictive coding wars have led to a separate but related battle over how much information is appropriate to share—or to force a party to share—as part of the seed set and training process. One recent example is the much-litigated protocol for production of electronically stored information (ESI) in Moore v. Publicis Groupe, 287 F.R.D. 182, 193 (S.D.N.Y. 2012), in which a federal court concluded that computer-assisted review was an appropriate means of determining relevant and discoverable documents for production. Addressing the e-discovery process more broadly, the court noted that, “[e]lectronic discovery requires cooperation between opposing counsel and transparency in all aspect of preservation and production of ESI.”
“Cooperation” has been an e-discovery buzzword for years, originally intended as a way to encourage parties to stop engaging in e-discovery gamesmanship. See www.thesedonaconference.org. Over the ensuing years, the idea of cooperation has, perhaps not surprisingly, turned from a shield into a sword in the hands of some parties—and judges. “Forced cooperation,” in the form of directing a party to turn over something in addition to documents it has deemed responsive to a document request—such as search terms or information related to predictive coding seeding—is not only a possible oxymoron, but also a dangerous dance on the edge of violating work product protection. See David J. Kessler, Robert D. Owen and Emily Johnston, “Search Terms Are More Than Mere Words,” NYLJ (March 21, 2011). Instead of heeding the counsel provided in that article, judges have continued to order the disclosure of search terms in a series of decisions that appear to discount or misunderstand the protected nature of key aspects of the e-discovery process. Below, we review a recent decision that exemplifies this trend.
The American Home Decision
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